L.A.R. 22.1: Necessity of Certificate of Appealability

(a) When a certificate of appealability is required, a formal application must be filed with the court of appeals, but the court may deem a document filed by a habeas corpus petitioner that discloses the intent to obtain appellate review to be an application for a certificate of appealability, regardless of its title or form. If an application is not filed with the notice of appeal, the appellant may file and serve an application within 21 days of either the docketing of the appeal in the court of appeals or of the entry of the order of the district court denying a certificate, whichever is later. The appellees may, but need not unless directed by the court, file a memorandum in opposition to the granting of a certificate, within 14 days of service of the application. The appellant may, but need not, file a reply within 10 days of service of the response. The length and form of any application, response, or reply must conform to the requirements of FRAP 27 governing motions.

(b) If the district court grants a certificate of appealability as to only some issues, the court of appeals will not consider uncertified issues unless appellant first seeks, and the court of appeals grants, certification of additional issues. Appellant desiring certification of additional issues must file, in the court of appeals, a separate motion for additional certification, along with a statement of the reasons why a certificate should be granted as to any issue(s) within 21 days of the docketing of the appeal in the court of appeals. Appellees may file a memorandum in opposition within 14 days of service of the application. Appellant’s reply, if any, must be filed within 10 days of the service of the response. The length and form of any application, response, or reply, must conform to the requirements of Rule 27, FRAP governing motions. If granted, the order must be included in volume one of the appendix, which may be attached to the appellant’s brief. If the motions panel denies the motion to certify additional issues, the parties should brief only the issues certified unless the merits panel directs briefing of any additional issues. Notwithstanding the above, the merits panel may expand the certificate of appealability as required in the circumstances of a particular case.

(c) In a multi-issue case if the district court grants a certificate of appealability, but does not specify on which issues the certificate is granted as required by 28 U.S.C. § 2253(c)(3), the clerk will remand the case for specification of the issues.

(d) A certificate of appealability is required if a petitioner files a cross-appeal. The petitioner should apply to the district court for a certificate in the first instance.

The portions of prior Court Rule 13 that were repetitive of FRAP 22 were deleted in 1995; otherwise no substantive change from prior Court Rule 13.1 is intended. Technical changes were made to conform to FRAP 27 in 1997. The response time was lengthened to permit litigants sufficient time to file an application or response.